(1) Charge: violation of federal firearms statute by unlawfully receiving
a firearm transported interstate after D had previously been
convicted of a crime punishable by more than one year in prison. At trial,
W, a druggist, testified for the prosecution that D
had entered his pharmacy with a prescription that W recognized
as forged. When W asked D to remain in the store so
the police could check the prescription, D bolted, and W
gave chase. During the chase D dropped the drugs and gun over
the side of a wall. D objected to the evidence of the alleged
forged prescription.

(2) Charge: illegal sale of narcotics. At trial a state narcotics agent
is offered by the prosecution to testify that he and another agent had
visited D's house together and that each had purchased a can
containing some substance, which the agents believed was marijuana. D
objects to the testimony concerning the sale to the other agent.

Remember the words, "other purposes, such as"
in Rule 404(b). Evidence may be admitted when it is necessary to tell
the whole story of the events in issue at trial even though the evidence
tends to show the commission of other crimes or a criminal character.
Such "res gestae" evidence is one example of the nonapplication
of the general propensity rule that is not listed in the illustrations
specified by Rule 404(b).

The evidence of the forged prescription in (1) must be admitted
so that the jury can understand the facts central to the gun possession
charge. Without the evidence, the prosecution's case is virtually unintelligible.
The term "res gestae" has been used to describe this "exception"
to Rule 404(a), even though there is no explicit mention of it in 404(b).The
case for admission of the "other sale" evidence under the "res
gestae" exception is weaker in (2). The purchase of marijuana by
one agent can be understood as a "complete story" without reference
to the contemporaneous purchase by the second narcotics agent. However,
if D raises the defense of entrapment, evidence of the second
sale becomes directly relevant to rebut the entrapment defense on the
issue of predisposition. This is analogous to a defendant opening the
door to character evidence by raising the issue.

Chief Justice Cardozo alludes to the res gestae exception
in Zackowitz when he states, "Different, also, would be
the question if the defendant had been shown to have gone forth from the
apartment with all the weapons on his person. To be armed from head to
foot at the very moment of an encounter may be a circumstance worthy to
be considered, like acts of preparation generally, as proof of preconceived
design." Yet Cardozo cautions against unthinking use of res gestae:
"what was proved may have an air of innocence if it is styled the
history of the crime."

There is often an overlap between res gestae evidence and
evidence of preparation or plan. Res gestae goes to all acts that are
necessary to fill in the factual context of the crime charges. These facts
may be happenstance, or they may be criminal in nature and reflect poorly
on the defendant. Either way, they are independently relevant for descriptive
purposes. In contrast, evidence of preparation and plan is admissible
because specific inferences highly pertinent to the crime charged follow
from the very existence of preparation or plans.

Often the distinction between res gestae and preparation
evidence is blurred. The hypothetical posed by Cardozo in Zackowitz
is an example. The crucial issue in Zackowitz was the state of
mind of the defendant at the moment of the homicide. If the defendant
had been carrying all of his weapons, this fact would be an inextricable
part of understanding the whole event, that is, res gestae. At the same
time, the fact of carrying these weapons is evidence of preparation from
which a trier of fact can make inferences specifically about premeditation
(state of mind) by the defendant. Had state of mind not been an issue,
admission of the evidence of the guns could not have been justified on
this basis, but this information probably would still be needed to describe
the whole picture.